There wasn’t anything particularly controversial about Georgia’s presidential primary in March this year. Donald Trump won the Republican contest – picking up a little more than 400,000 more votes than Nikki Haley, who had long dropped out of the race.
Nonetheless, two Republicans on the five-person Fulton county election board refused to certify the election.
Julie Adams and Michael Heekin didn’t point to specific irregularities. Instead, they said they needed more information from election administrators, like chain-of-custody documents for ballots. Adams and Heekin were outvoted.
But it didn’t end there. In May, Adams, who is a part of an election activist network founded by Cleta Mitchell, voted against certifying another Georgia primary election. Again, despite no irregularities, she said she needed more information. With the backing of a group closely aligned with Donald Trump, Adams had also recently sued the Fulton county board, asking a judge to declare that she and other commissioners could choose not to certify the election.
It was an unusual request – verification of ballot totals happens in the extensive process that leads up to certification and state laws generally do not permit those responsible for certifying them the discretion to investigate.
In early August, the Republican-controlled state election board in Georgia adopted a new rule that essentially gave Adams what she wanted. It requires local election board members to conduct an undefined “reasonable inquiry” into any discrepancies before they can certify the election. There are concerns that officials could use that discretion to hold up certification of the election.
The episode in Fulton county, and the new rule in Georgia, could be an alarming dress rehearsal for how Donald Trump and his allies will try to challenge the election results in November if he loses.
Trump has repeatedly refused to commit to accepting the election results, declining multiple times to do so during a 27 June debate. He has suggested that Christians would “never have to vote again” if he wins. The anti-democratic sentiment has been echoed by other prominent conservatives, including Mike Howell, the director of the oversight project at the Heritage Foundation, who said earlier this year there was a “0% chance of a free and fair election”.
“I’m formally accusing the Biden administration of creating the conditions that most reasonable policymakers and officials cannot in good conscience certify an election,” he said at a Heritage Foundation event this summer.
The effort poses a challenge that again would test the strength of the US’s voting system and its democratic institutions. It could probably stretch from little-known county election officials to the Congress.
In some ways, Trump’s attempt to challenge the election result in 2024 could look a lot like his effort in 2020. It has begun months before election day with the seeding of doubt about the integrity of the election and could continue after.
There are two key differences.
First, Trump may be better prepared. Mitchell, a close Trump ally, has spent the last few years building up a network of activists focused on local boards of elections. And the Republican National Committee’s election litigation team is now being led by Christina Bobb, an election denier who is now facing criminal charges for her efforts to overturn the 2020 race. The RNC claims it is recruiting an army of 100,000 poll observers who could provide significant disruption during voting and counting.
“I think we saw efforts by Republicans in 2020 that were pretty ham-handed,” said Marc Elias, a top Democratic voting rights lawyer. “I worry that there will be both legal and extralegal efforts by Republicans to keep ballots from being counted.”
But more significantly, the idea that the 2020 election was stolen has moved from the fringes to being a pillar of the Republican party. A January poll from PRRI found that 66% of Republicans believe the 2020 election was stolen. “The most important thing we have to do is protect the vote. You have to keep your eyes open because these people want to cheat and they do cheat, and, frankly, it’s the only thing they do well,” Trump said in a prerecorded video that played all four nights during the Republican national convention in July.
The belief in stolen elections, Elias said, was “no longer the provenance of crazy people like Rudy Giuliani, Jenna Ellis and Sidney Powell. This is no longer the province of people who thought that there were bamboo filaments in paper or mythical sea creatures involved in the election with Venezuelan dictators.
“It has become now the standard position of the Republican party.”
Seeds of doubt in 2020 to bloom in 2024
Trump began seeding doubt in 2020 by pointing to mail-in voting as evidence the election was being stolen months beforehand. Because of the Covid-19 pandemic, many states were quickly changing the rules around voting by mail, allowing expanded access because it was not clear if it would be safe to vote in person on election day.
This year, Americans are unlikely to use mail-in voting at the same levels they did during the pandemic, and Republicans are now encouraging their supporters to take advantage of it. But Trump and allies are using a new messaging tactic in its place: that there are scores of non-citizens and other ineligible people on the voter rolls.
Mitchell has played a key role in leading a coalition of groups that has pushed the false idea that there is a serious threat of non-citizens voting in US elections. Her coalition has supported federal legislation championed by the House speaker, Mike Johnson, and others to require proof of citizenship when registering to vote. Such a restriction would probably do little to prevent fraud, which is exceedingly rare. Instead, it would probably make it harder for millions of eligible voters to cast a ballot. Nearly one in 10 eligible voters – 21 million Americans – lack easy access to proof of citizenship documents, according to one study released earlier this year.
Even though Johnson’s congressional bill passed the House, it will probably go nowhere in the Senate. But it helps create an impression that something is amiss with American elections. To make matters worse, when Kamala Harris replaced Joe Biden at the top of the ticket, Republicans also immediately sought to suggest her candidacy was illegitimate, calling the effort a “coup”.
A constellation of groups – including the RNC, the Public Interest Legal Foundation and United Sovereign Americans – has also filed several lawsuits in various states to create the false impression that voter rolls are not properly being cleaned in several swing states. These lawsuits use misleading methodology and legal claims to suggest that there are a suspiciously large number of people registered in certain jurisdictions. Among other issues, they compare up-to-date voter registration information and outdated data from the American Community Survey.
“They’re hanging the hooks to later hang their hat on,” said Sean Morales-Doyle, the top voting rights expert at the Brennan Center.
“It’s all part of creating sort of a pretext to say, ‘Oh, we need to throw out this set of ballots’ or ‘We can’t really know who the real winner is,’” said Ben Berwick, a lawyer at the non-profit Protect Democracy who works on voting rights issues. “I think much of it won’t stick, but I think the point is to have enough of it stick to create enough uncertainty for that critical post-election period.”
‘Tricky legal questions and room for shenanigans’
Any effort to challenge the election results will probably start at the local level.
Just as there was in 2020, there’s likely to be a period of uncertainty after election day when votes are still being counted in key swing states. Two of those, Wisconsin and Pennsylvania, still do not allow election officials to begin to process mail-in ballots until election day.
“I’m definitely concerned that you’re gonna have a lot of efforts to disturb the process of counting those votes, if we go into the late evening, early hours of the next day and all of that,” said Richard Pildes, a professor at New York University who specializes in election law.
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The observers amassed by Mitchell and the RNC could have a significant role. In 2020, chaotic confrontations at polling sites offered misleading evidence that Trump and allies used in their effort to try to overturn the election. Trump’s effort to challenge the election results in Arizona, for example, was undergirded by affidavits from observers and poll watchers who falsely claimed they saw ballots being rejected because of the type of pen voters were using.
In Georgia, Trump pointed to reports from observers in Atlanta falsely claiming they were removed from the facility where mail-in ballots were counted. In Michigan, Trump’s team used as evidence an “incident report” from an election observer who falsely said she heard workers giving instructions to count a rejected ballot.
Accusations of fraud may find a receptive audience at county boards responsible for certifying elections. Until 2020, no one gave much thought to these positions, sometimes filled by elected officials and other times by little-known party loyalists. In 2020, Trump’s campaign made a strong effort to try to delay certification at the local and state level as part of his effort to overturn the election.
In Wayne county, home of Detroit, Trump personally called two Republican canvassers on the board responsible for certifying the vote there. The two officials briefly refused to certify, then reversed themselves and did. At the state level, Aaron Van Langevelde, a Republican on the state board of canvassers, faced pressure not to certify the vote, but decided to anyway.
In Wisconsin, Republicans nearly got the state supreme court to block certification of the state’s election. In Arizona, Trump called the then governor, Doug Ducey, as he was certifying the vote amid a pressure campaign to stop the certification of votes there.
Since 2020, there have been at least 20 instances in eight states of election officials refusing to certify election results.
The first red flag came in 2022, when county commissioners in Otero county, New Mexico, refused to certify the results of a primary election, citing vague concerns about voting equipment. The secretary of state eventually went to court to force the commissioners to certify the election.
In July of this year, two Republicans on the county commission in Washoe county, Nevada – a key county in a battleground state – refused to certify its primary vote, setting off alarms. The commissioners who refused to certify eventually reversed themselves. Nevada’s secretary of state, Cisco Aguilar, has since asked the state supreme court to clarify that county commissioners have an obligation to certify votes.
Sometimes election officials who refuse to certify have pointed to mistakes that happened during the election, even though they did not affect the outcome. In other cases, like Adams’s in Georgia, officials have refused to certify to protest about what they view as unfair laws.
While courts would probably force recalcitrant officials to certify the vote, significant damage could still be caused.
“You can force certification through legal mechanisms, [but] those events tend to be like rocket fuel for conspiracy theories and misinformation and undermining confidence in the election. So there’s damage done even where certification is eventually forced,” said Berwick, the Protect Democracy lawyer.
The timeline for certifying the vote is important because, under federal law, states must have an official election result by 11 December, six days before the electoral college meets. Delaying certification efforts at the local level could put states at risk of missing that deadline.
“If we get past that deadline, it opens up a lot of questions, like tricky legal questions and room for shenanigans,” Berwick said.
Pildes, the NYU professor, said that while he was concerned about efforts to block certification at the local level, he was confident that state courts could resolve any disputes by the time the electors meet.
A new law, the Electoral Count Reform Act, should provide a significant new layer of protection against election subversion. The bipartisan bill passed Congress at the end of 2022.
The law makes it so that Trump and his allies cannot repeat what they did in 2020 and submit false slates of electors from key swing states. Significantly, it says that the slate of electors submitted by a state’s executive is the legitimate slate and raises the threshold in both houses of Congress to object to the electoral result.
While the law controls what Congress must do once it receives certificates from electors, it doesn’t have much to say about what must happen in the lead-up to the electoral college vote. That could leave a lot of wriggle room for Trump and allies to try to slow down certification and go to court to try to force states to miss their certification deadline.
Prepared for challenges
After Donald Trump nearly succeeded in overturning the 2020 election, is the US better prepared to stop a similar effort in 2024?
Lawyers and other activists say they are ready, having spent the last four years studying and understanding the vulnerabilities that Trump and allies targeted in 2020. Any effort to block certification is likely to be swiftly challenged in courts, where Trump has already been unsuccessful dozens of times.
The new Electoral Count Reform Act should offer additional safeguards should there be an effort such as there was in 2020 to get Congress to stop its certification of the vote
Yet it would be a mistake to dismiss the threat altogether. The same pressure points that existed in 2020 exist in 2024, and in some places election deniers have been elevated to positions of power.
“This has started earlier in the cycle and is louder and is more consistent,” said Morales-Doyle of the Brennan Center. “That is all just at a different level than it was before 2020.”